4 thoughts on “APIL/PIBA 6”

In terms of attacking the success fee the question of what costs would be payable is taking into account hindsight – you have to assume that the solicitor will advise of the Part 36 and accordingly counsel has no Part 36 risk and the sucess fee should be adjusted accordingly. They would be doomed if liability already entered pre CFA – Haines v Sarner territory I would say

Counsel in that case should sue the solicitor for breach of contract and negligence

termination is not a realistic option, as it would disadvantage Counsel in terms of recoverable success fees

the key word is “may”. its not automatic. Counsels rights in breach of contract and negligence are fully preserved

interesting question tho Simon – its happened many times in files Ive seen now I think on it. The fact is however, Counsel wont ordinarily sue, to preserve the status quo with their solicitor (assuming theres an ongoing relationship) or Chambers (on the same assumption).

Purpose of the clause is that if counsel has advised on an offer, recommended its rejection, but then client fails to beat it, he shares the pain and gives up his success fee.

If he hasn’t (either because denied the chance (the bit the CFA is silent on) or because he advised its acceptance (the bit expressly covered))then why should he share the pain? He gets normal fees plus success fee.

Doubt any judge (at least one familiar with contract, so we can rule out some of the costs judges, but that’s why we have appeals) would have much difficulty with that one.

No need for counsel to sue anyone or terminate the contract. The clear objective construction entitles him to payment. If the solicitor messed up, then he may have to bear the extra cost himself, but that’s another issue.